CAL-Exit and TExit May Happen Via the Supreme Court


-By Ken Lambert

For the past several months there has been a growing chorus of voices in California threatening to secede from the United States, supposedly over stark differences with President Trump. Also, it seems like every few years there are rumors of Texas trying to break away from the Union once again.

Thus, in newspapers and websites across the country we read articles addressing secession- and the legality of such an endeavor. Nearly all columnists and reporters state that the people in California or Texas cannot simply decide they want out of the USA. But, is that the whole story?

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Most people dismiss the notion of secession and say that the Civil War itself settled the question. The Union won that war, and therefore won the argument.   But of course that is not the case; if one party physically beats the other one, it does not mean that the loser was incorrect. It only means that the loser was literally forced into submitting to the winner.

Many point to two verdicts from the U.S. Supreme Court in the few years following the Civil War which determined that unilateral secession is illegal. The issue with those two cases is that it was so close to the end of the war and the entire country was still in shambles. The court is not supposed to be political, but I’m sure that they were cautious in not arriving at a decision which validated secession. It is also worth mentioning that the Supreme Court has been wrong and overturned itself dozens of times; the Court is not infallible. Legal precedent based on two verdicts is not the end-all of the matter.

When reviewing the prison time and pending treason trial of Jefferson Davis, the U.S. Supreme Court (with help from President Johnson) eventually decided that they would not bring Davis to federal trial. Some claim it was to avoid opening wounds still raw from the war, but others truly believed that the Union did not bring him in front of the Supreme Court because they knew Davis had a shot of winning his case. That would have been disasterous for the reunited country.

There are some intriguing arguments concerning legal secession by Alexander Stephens in his 1868 two-Volume book, “The War Between the States.” As the vice president of the Confederacy, Stephens was an interesting historical character.  What many do not know is that Stephens was a U.S. Congressman for many years both before AND after the War, in addition to being elected Governor of Georgia shortly before his death. His book is essentially a series of debates looking at the viability of state secession. His points include:

  • The Kentucky Resolutions of 1798 and 1799 were written by then-Vice President Thomas Jefferson. The Resolutions of 1798 declared that each individual state has the power to declare that federal laws are unconstitutional and void. The 1799 Resolution argued that when the states determine that a law is unconstitutional,  the state’s proper remedy is nullification.
  • 1814- New England, or Hartford, Convention- several states were not happy with the federal government and the ongoing war with Great Britain. They sent their grievances to Washington DC, stating that it is a state’s right to execute their own decisions when there are significant infractions against the sovereignty of a state.
  • 1844 and 1845- the Massachusetts State legislature passed resolutions which stated: “that the project of the annexation of Texas, unless arrested on the threshold, may drive these States into a dissolution of the Union”… And “such an act of admission (of Texas) would have no binding force whatever on the people of Massachusetts”
  • 3 states when ratifying the Constitution only did so with a written provision that they reserve and preserve their own right to in the future nullify their acceptance of the U.S. Constitution when and if it sees fit. They were protecting their own states’ sovereignty.

One last comment is that there is no clause in the Constitution, and no Amendment, which forbids a state from seceding from the Union. There is a certain manner noted of accepting new states into the Union, but to assume that a state needs to follow those same provisions in order to secede is not legally relevant. In order to truly settle the case, there would need to be a new Amendment passed specifically forbidding unilateral state secession. Given the chaotic political climate, who knows if such an Amendment would pass?

Whether it is Cal-Exit now, or some other disgruntled state in the future, this problem will come up again and again. If said state fights it all the way to the U.S. Supreme Court, they may in fact get the answer that they are hoping for.

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